ACOEL - WaterAmerican College of Environmental Lawyers Bloghttp://www.acoel.org/
http://www.rssboard.org/rss-specificationBlogEngine.NET 2.0.0.36en-GBhttp://www.acoel.org/opml.axdACOELACOEL0.0000000.000000WOTUS, We Hardly Knew Ye<p class="DWTNorm">With a flourish of his pen, on February 28, President Trump signed an <a href="http://www.acoel.org/file.axd?file=2017%2f3%2fAcrobat+Document.pdf">Executive Order</a><span class="MsoCommentReference"><span style="font-size: 8.0pt;">&nbsp;</span></span> aimed at dismantling the ill-fated Waters of the United States (WOTUS) rule.&nbsp; The rule was the latest attempt by EPA and the Army Corps of Engineers to bring some clarity to the limits of federal authority under the Clean Water Act.&nbsp; Clarity in this area has been elusive, and though many were unhappy with the rule, no one benefits from the current state of confusion.</p>
<p class="DWTNorm">The uncertainty begins with the Clean Water Act, which Congress said applies to &ldquo;navigable&rdquo; waters and then helpfully defined navigable to mean &ldquo;waters of the United States.&rdquo;&nbsp; The agencies and the courts have struggled ever since to figure out when wetlands are jurisdictional.&nbsp; The courts have not helped.&nbsp; In <a href="https://www.supremecourt.gov/opinions/05pdf/04-1034.pdf"><em>Rapanos </em>v<em>. U.S.</em></a>, a 5-4 majority of the Supreme Court found the Government had overreached, but could not agree as to why.&nbsp; Justice Scalia, writing for a plurality of the Court, would limit jurisdiction to &ldquo;relatively permanent, standing or continuously flowing bodies of water,&rdquo; excluding intermittent or ephemeral channels and most drainage ditches.&nbsp; In a concurring opinion, Justice Kennedy invoked a &ldquo;significant nexus&rdquo; test whereby jurisdiction should apply if a hydrologic connection between a wetland and a navigable water could be demonstrated.&nbsp; Later courts have tried to follow both tests, with mixed results.</p>
<p class="DWTNorm">Justice Scalia&rsquo;s test is a lot easier to apply:&nbsp; If you can see the water or the land goes squish under your feet, there is jurisdiction.&nbsp; Justice Kennedy&rsquo;s test requires a case-by-case review and exercise of professional judgment.&nbsp; The WOTUS rule focused more on the Kennedy test to indicate how the Government would make its jurisdictional determinations.</p>
<p class="DWTNorm">Without getting into detail that now is mostly moot, the rule generated about one million public comments and lots of litigation&mdash;17 District Court complaints and 23 petitions to various Circuit Courts of Appeal.&nbsp; It seemed certain that the Supreme Court would get another opportunity to declare the law of WOTUS.</p>
<p class="DWTNorm">No doubt the Court will get that chance, but in a drastically different context.&nbsp; The president&rsquo;s Executive Order has no legal effect, other than to get the process started.&nbsp; The Obama Administration&rsquo;s WOTUS rule was subject to years of notice and comment before adoption, and the Trump Administration&rsquo;s revisions will have to go through the same process.&nbsp; No doubt they will be as controversial and will also be fiercely litigated.&nbsp; That will take a very long time to play out, and won&rsquo;t likely be completed during a Trump first term.&nbsp;</p>
<p class="DWTNorm">In the meantime, property owners still would like to develop their property, and the Government still has to apply the law.&nbsp; The Trump Executive Order gives direction that a new WOTUS rule should follow the Scalia test, but that doesn&rsquo;t reflect the way jurisdictional determinations are made today.&nbsp; Suffice to say that the Kennedy significant nexus test will still be in play for the near to intermediate term, and a prudent developer will include a wetlands determination as a key part of the due diligence for the project.</p>
<div><!--[if !supportAnnotations]--></div>http://www.acoel.org/post/2017/03/02/WOTUS-We-Hardly-Knew-Ye.aspx
admin@acoel.orghttp://www.acoel.org/post/2017/03/02/WOTUS-We-Hardly-Knew-Ye.aspx#commenthttp://www.acoel.org/post.aspx?id=f0ac3655-7c03-4eec-8e82-9a10488da6ddThu, 02 Mar 2017 14:44:00 -0500Clean Water ActWaterRick Glickhttp://www.acoel.org/pingback.axdhttp://www.acoel.org/post.aspx?id=f0ac3655-7c03-4eec-8e82-9a10488da6dd0http://www.acoel.org/trackback.axd?id=f0ac3655-7c03-4eec-8e82-9a10488da6ddhttp://www.acoel.org/post/2017/03/02/WOTUS-We-Hardly-Knew-Ye.aspx#commenthttp://www.acoel.org/syndication.axd?post=f0ac3655-7c03-4eec-8e82-9a10488da6ddCuba Delegation Part 3: Environmental Law and Policy Wonks Wanted<p>Our ACOEL delegation to Cuba was an incredible opportunity to engage substantively with the lovely people of Cuba.&nbsp; My personal experience is that the Cuban People are joyful, happy, warm, generous, well-educated and proud of Cuba.&nbsp; Cuban literacy rates are extraordinarily high (97%), and with government funded education, the population has high rates of secondary education, including masters and PhD graduates, in science, medicine, engineering, architecture, and law as well as the creative arts, music, art, dance and so much more.</p>
<p>As a second career lawyer and chemical engineer, I loved engaging in Cuba&rsquo;s electrifying mix of science and engineering education, creativity and equality.&nbsp; But my fascination was also challenged by the need to fully appreciate contextual implications of Cuba&rsquo;s post-revolutionary government, including government-controlled media and government-provided and government-directed education and careers, healthcare, housing and food distribution.&nbsp;This is a wholly different mindset from U.S. capitalism, of course, which takes time and engagement to fully explore and understand.&nbsp; With its socialist roots and communist goals, most important in Cuba is equality:&nbsp; equality between bricklayers and brain surgeons, as well as between women and men.&nbsp; And while Cubans exhibit pride in their cultural emphasis on equality, a quality the U.S. is struggling to achieve in many respects, this emphasis may result in disincentive regarding the more challenging career choices.&nbsp; Also, with government-controlled investment, we saw stark contrasts between recent and historic choices in investment, targeted skills and effective implementation contrasting with apparent inefficiencies and possibly strategic neglect.&nbsp; For example, Havana&rsquo;s recently completed opera house, which we were told was completed within three years by Cuban workmen, is a marvel of execution.&nbsp; It is simply breathtaking and a great example of Cuban potential.&nbsp; Yet several doors down are majestic and palatial structures built in the 1800&rsquo;s, for which rooves and windows have long given way to healthy vegetation, and even trees, within roofless walls.</p>
<p>As environmental lawyers, of course, we were visiting to learn about Cuban environmental policies and to see if Cuba might be receptive to ACOEL&rsquo;s offer of pro bono assistance.&nbsp; Recall that the timing of Cuba&rsquo;s disengagement from the U.S. occurred somewhere around Kennedy&rsquo;s disastrous Bay of Pigs in April 1961 and the Cuban Missile Crisis in October 1962, which were contemporaneous with awakening of the U.S. consciousness regarding environmental policy with the first publication of Rachel Carson&rsquo;s &ldquo;Silent Spring&rdquo; in September 1962.&nbsp; In light of this, I did not expect to see evidence of U.S.-based or otherwise familiar environmental policies, practices or approaches. In our discussions throughout our visit, however, Cuba&rsquo;s great interest in protecting the environment was quite clear, particularly Cuba&rsquo;s focus on protecting native species and surface water and Cuba&rsquo;s commitment to the Paris Agreement.&nbsp;</p>
<p>Cuban historic domestic industries include textiles, footwear, cement, flour milling, fertilizer, nickel and steel production; mining for nickel, copper, chromium and manganese; and agriculture including tobacco (cigars!), henequen (agave), rice and coffee.&nbsp; With Cuba opening up to the world, the Cuban government has received many proposals for development projects in the country including, of course, hotels and golf resorts, but also a long list of projects that can replace current imports and benefit from Cuba&rsquo;s natural resources including:&nbsp; radial tires, petroleum, automobiles and trucks, refrigeration and air conditioning, stainless steel and alloys, aluminum cans and glass bottles, tableware and other goods for the hotel industry, industrial waste treatment and waste-to-energy project proposals, pharmaceuticals, containers and equipment for drug storage, delivery and other medical uses, cell phones, concentrated animal feeding operations, animal and agricultural goods processing (for example, fruits and vegetables, soy bean, yeast, spirits (rum!), sugar, coffee, cacao, dairy, shrimp, chicken, pork, beef, charcoal), and many more industrial, commercial and consumer goods.</p>
<p>With the natural beauty and unique species native to the Cuban archipelago, the Cuban Government quite rightly demands demonstration up front that all projects will result in no unacceptable impact to the environment and native species.&nbsp; However, in making this demonstration, proposed projects would greatly benefit from design and implementation of environmental management systems and approaches similar to those long implemented by the United States. For example, there may be a need for more air pollution control requirements for sooty stacks, even if Cuba is surrounded by ocean; limitations on releases of pollutants to the environment; and a systematic method of identifying, characterizing and managing solid and hazardous wastes produced by industry.&nbsp; Also, many indicated they had concerns regarding water resources and expressed an interest in water conservation, efficient use of water resources and protection of surface and drinking water resources.&nbsp; Certainly, when and if the lovely historical ghost structures so common throughout Cuba are to be preserved or redeveloped, systematic methods of renovation or redevelopment would be helpful.&nbsp; And finally, as Eileen will share in her blog, there are opportunities and great enthusiasm in sustainability and conservation, including sustainable energy projects, and potentially exploration of more efficient approaches to electricity distribution, such as distributed energy generation, renewable energy and energy conservation.&nbsp; But beyond the technical standards, more than anything, Cuba&rsquo;s greatest opportunity may be in developing and adopting an integrated environmental program that will result in predictable, consistent and fair implementation, monitoring and enforcement, with reasonable penalties for noncompliance.</p>
<p>I am hopeful ACOEL has an opportunity to assist Cuba, and that our ACOEL Fellows catch our Cuban Enthusiasm and volunteer to join us in Cuba pro bono projects!</p>http://www.acoel.org/post/2016/10/11/Cuba-Delegation-Part-3-Environmental-Law-and-Policy-Wonks-Wanted.aspx
admin@acoel.orghttp://www.acoel.org/post/2016/10/11/Cuba-Delegation-Part-3-Environmental-Law-and-Policy-Wonks-Wanted.aspx#commenthttp://www.acoel.org/post.aspx?id=1ad387f1-a232-4f2f-bf03-85a3cb07a8a7Tue, 11 Oct 2016 09:44:00 -0500AirClimate ChangeEnforcementHazardous WasteInternational IssuesPro BonoResource ManagementSustainabilityWaterMary Ellen Terneshttp://www.acoel.org/pingback.axdhttp://www.acoel.org/post.aspx?id=1ad387f1-a232-4f2f-bf03-85a3cb07a8a71http://www.acoel.org/trackback.axd?id=1ad387f1-a232-4f2f-bf03-85a3cb07a8a7http://www.acoel.org/post/2016/10/11/Cuba-Delegation-Part-3-Environmental-Law-and-Policy-Wonks-Wanted.aspx#commenthttp://www.acoel.org/syndication.axd?post=1ad387f1-a232-4f2f-bf03-85a3cb07a8a7Senate Approves $4.9 Billion for Drinking Water<p class="DWTNorm">Congress in recent years has not really been in the business of solving core public welfare problems like safe drinking water.&nbsp; Today the Senate, however, has taken a major step forward by passing the 2016 Water Resources and Development Act, <a href="https://www.congress.gov/bill/114th-congress/senate-bill/2848/text">S. 2848</a>.&nbsp; WRDA bills are the annual appropriations bills to shore up the nation&rsquo;s water service infrastructure.&nbsp; The Senate bill would provide $9.4 billion <span lang="EN">for water projects, hydrology and flood control</span>, including $4.9 billion to address aging municipal water systems.&nbsp;</p>
<p class="DWTNorm">By and large, Americans take for granted that their municipal water supply systems deliver abundant, wholesome and safe drinking water.&nbsp; Water borne illnesses are rare in this country, and the professionals I know that operate these systems take their jobs seriously and feel the weight of the responsibility.&nbsp; And yet, there are colossal failures putting public health at risk&mdash;like Flint.</p>
<p class="DWTNorm">The Flint debacle reflects a complete absence of professional water management. &nbsp;The problem there was a change in water supply, and the failure to add commonly available corrosion inhibiting chemicals to the water to prevent lead pipelines from leaching lead into Flint homes.&nbsp; What should have been an inexpensive operational measure became a billion dollar pipe replacement project.&nbsp; And that figure doesn&rsquo;t include the long-term costs to address health effects of drinking the water, not to mention the cost of a different kind of corrosion, that of the public trust.</p>
<p class="DWTNorm">But even well-managed municipal water systems, including those that tout the high quality of the supply, can have serious lead problems.&nbsp;&nbsp; My town of Portland, Oregon, has one of the purest water sources in the country, the Bull Run water shed on Mt. Hood.&nbsp; The water is so soft, however, that it has a corrosive effect.&nbsp; Luckily Portland doesn&rsquo;t have lead service pipes like Flint, but many older homes have lead solder in their plumbing, resulting in Portland <a href="http://www.oregonlive.com/portland/index.ssf/2016/04/lead_in_the_water_why_portland.html">exceeding lead drinking water standards</a><span class="MsoCommentReference"><span style="font-size: 8.0pt;">&nbsp;</span></span>in high risk households and schools.</p>
<p class="DWTNorm">The <a href="https://www.portlandoregon.gov/water/article/583401">Portland Water Bureau</a><span class="MsoCommentReference"><span style="font-size: 8.0pt;">&nbsp;</span></span>is taking steps to address the lead problem, like raising the pH level in the water to minimize lead leaching.&nbsp; But Portland&rsquo;s water rates are among the highest in the country, and the cost of maintaining safe water supplies is only going up.&nbsp; There is a practical limit to how high water rates can go, and communities with fewer resources than Portland struggle to keep up.</p>
<p class="DWTNorm">This is where the federal government is supposed to step in, to address problems that exceed local capacities to protect the public.&nbsp; Although a little late in coming, S. 2848 is a mostly bipartisan bill, which if enacted could move the needle in the right direction.&nbsp; Let&rsquo;s hope this bill gets through the House and to the President for signing without further delay.</p>
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admin@acoel.orghttp://www.acoel.org/post/2016/09/15/Senate-Approves-$49-Billion-for-Drinking-Water.aspx#commenthttp://www.acoel.org/post.aspx?id=466ecd9a-15dd-4378-b276-fd7b43bab19eThu, 15 Sep 2016 16:43:00 -0500InfrastructureWaterWater Quality StandardsRick Glickhttp://www.acoel.org/pingback.axdhttp://www.acoel.org/post.aspx?id=466ecd9a-15dd-4378-b276-fd7b43bab19e0http://www.acoel.org/trackback.axd?id=466ecd9a-15dd-4378-b276-fd7b43bab19ehttp://www.acoel.org/post/2016/09/15/Senate-Approves-$49-Billion-for-Drinking-Water.aspx#commenthttp://www.acoel.org/syndication.axd?post=466ecd9a-15dd-4378-b276-fd7b43bab19eWhither WOTUS?<p class="DWTNorm">In June 2015, the Environmental Protection Agency and the Army Corps of Engineers released a rule to define &ldquo;waters of the United States,&rdquo; affectionately referred to as WOTUS.&nbsp; This definition goes to the scope of federal jurisdiction over wetlands and other waters that are not obviously free flowing and navigable.&nbsp; An in-depth analysis of the rule can be found <a href="http://www.energyenvironmentallaw.com/2014/09/23/ecos-releases-waters-of-the-u-s-paper/">here</a>.&nbsp;</p>
<p class="DWTNorm">The rule hasn&rsquo;t exactly played to rave reviews.&nbsp; It attracted over one million comments. &nbsp;Many complained the rule represents gross government overreach.&nbsp; Others criticize the rule for not being protective enough.&nbsp; The rule is also the subject of multiple challenges around the country, some filed before the rule was officially released.&nbsp; The lead case is now pending before the United States Court of Appeals for the Sixth Circuit. &nbsp;The Court of Appeals accepted original jurisdiction over a challenge to the rule based, in part, on the failure of the rule&rsquo;s &ldquo;distance limitations&rdquo; to comport with good science, and on the inconsistency of the final rule with the proposed rule.&nbsp; The Court of Appeals thought enough of petitioners&rsquo; arguments that it stayed implementation of the new rule.</p>
<p class="DWTNorm">On this first anniversary of the rule, we thought a brief summary of the controversies surrounding the rule and current status might be helpful.&nbsp; The attached <a href="http://www.acoel.org/file.axd?file=2016%2f7%2fAcrobat+Document.pdf">article</a>, newly published in The Water Report, attempts to do just that.&nbsp; Many thanks to Diego Atencio, a third year law student at the University of Oregon and a summer associate at DWT, for his assistance in writing the article.</p>
<div><!--[if !supportAnnotations]--></div>http://www.acoel.org/post/2016/07/18/Whither-WOTUS.aspx
admin@acoel.orghttp://www.acoel.org/post/2016/07/18/Whither-WOTUS.aspx#commenthttp://www.acoel.org/post.aspx?id=fc25558b-3d14-4413-8db6-2857a965f1b5Mon, 18 Jul 2016 11:34:00 -0500Clean Water ActWaterRick Glickhttp://www.acoel.org/pingback.axdhttp://www.acoel.org/post.aspx?id=fc25558b-3d14-4413-8db6-2857a965f1b51http://www.acoel.org/trackback.axd?id=fc25558b-3d14-4413-8db6-2857a965f1b5http://www.acoel.org/post/2016/07/18/Whither-WOTUS.aspx#commenthttp://www.acoel.org/syndication.axd?post=fc25558b-3d14-4413-8db6-2857a965f1b5HEY, JUDGE SKAVDAHL - DON’T THE INTERESTS OF THE UNITED STATES INCLUDE PROTECTING GROUNDWATER ON ITS OWN LAND?<p>The Mined Lands Act directs the Bureau of Land Management to issue regulations governing mining on public lands for, inter alia, &ldquo;the protection of the interests of the United States, . . . and for the safeguarding of the public welfare.&rdquo; More recently, the Federal Lands Policy Management Act specifically directs the BLM to take environmental issues into account in promulgating regulations governing the use of federal lands, that is, to manage federal lands in a way,</p>
<p class="MsoNormal" style="margin-left: .5in;">That will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values,</p>
<p>Last year, acting under these statutory authorities, the BLM <a href="https://www.gpo.gov/fdsys/pkg/FR-2015-03-26/html/2015-06658.htm">issued regulations</a> governing fracking on federal lands, which required federal lessees to disclose chemicals in their fracking fluids and to take measures to prevent well leakage.&nbsp; This week, the Federal District Court for the District of Wyoming <a href="http://www.wyd.uscourts.gov/pdfforms/orders/15-cv-043-S%20Order.pdf">struck down</a> these regulations as exceeding BLM&rsquo;s authority to regulate mining on public lands. The Court purported to find this result under the Chevron step I analysis, i.e., finding specific congressional intent that the Bureau of Land Management does not have authority to protect groundwater on public lands.&nbsp; Despite the broad statutory authorities cited above, the Court found that the Energy Policy Act of 2005, which specifically exempted fracking from EPA regulation under the Safe Drinking Water Act, evidenced Congressional intent that no federal agency has jurisdiction to regulate fracking activities, even on federal lands.</p>
<p>This ruling ignores the obvious difference between EPA regulation to protect groundwater generally under the Safe Drinking Water Act and actions by the BLM to protect the United States&rsquo; own properties that are subject to federal leases.&nbsp; FLPMA specifically directs BLM to take measures to protect ecological interests in managing federal lands, and it seems inappropriate for a federal court to second guess BLM&rsquo;s balance between resource extraction and groundwater protection.&nbsp; The United States in general has very broad authority to regulate activities on its own land, and Congress&rsquo; decision to exempt fracking on private lands from EPA regulation can&rsquo;t possibly be read as specific Congressional intent to preclude BLM from protecting groundwater on lands owned by the United States. On another level, this decision reflects a concerning trend towards judicial activism tearing down the Obama administration&rsquo;s invocation of statutory authorities to advance environmental protection in the face of a hostile Congress &ndash; witness the Supreme Court&rsquo;s <a href="http://www.supremecourt.gov/orders/courtorders/020916zr3_hf5m.pdf">stay of EPA&rsquo;s Clean Power Plan</a>, and the Sixth Circuit&rsquo;s <a href="https://www.epa.gov/cleanwaterrule/clean-water-rule-litigation-statement">stay of the Clean Water Rule.</a>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p>
<p>Environmental law got its start when courts, like the Second Circuit in Scenic Hudson Preservation Conference v. Federal Power Commission, read broad statutory grants of regulatory authority to include environmental protection.&nbsp; This decision by the District of Wyoming departs from that tradition.&nbsp; The BLM <a href="http://www.bloomberg.com/news/articles/2016-06-22/federal-judge-strikes-down-obama-s-effort-to-regulate-fracking">plans to appeal.</a></p>http://www.acoel.org/post/2016/07/06/HEY-JUDGE-SKAVDAHL-DON’T-THE-INTERESTS-OF-THE-UNITED-STATES-INCLUDE-PROTECTING-GROUNDWATER-ON-ITS-OWN-LAND.aspx
admin@acoel.orghttp://www.acoel.org/post/2016/07/06/HEY-JUDGE-SKAVDAHL-DON’T-THE-INTERESTS-OF-THE-UNITED-STATES-INCLUDE-PROTECTING-GROUNDWATER-ON-ITS-OWN-LAND.aspx#commenthttp://www.acoel.org/post.aspx?id=eb2a15f6-e35a-4f60-9af9-3f182740acbfWed, 06 Jul 2016 14:37:00 -0500FederalGovernmental PolicyHydraulic FracturingWaterKarl Coplanhttp://www.acoel.org/pingback.axdhttp://www.acoel.org/post.aspx?id=eb2a15f6-e35a-4f60-9af9-3f182740acbf0http://www.acoel.org/trackback.axd?id=eb2a15f6-e35a-4f60-9af9-3f182740acbfhttp://www.acoel.org/post/2016/07/06/HEY-JUDGE-SKAVDAHL-DON’T-THE-INTERESTS-OF-THE-UNITED-STATES-INCLUDE-PROTECTING-GROUNDWATER-ON-ITS-OWN-LAND.aspx#commenthttp://www.acoel.org/syndication.axd?post=eb2a15f6-e35a-4f60-9af9-3f182740acbfDoin’ The Dunes – Signing Off<p class="MsoNormal">In April, I reported on Supreme Court Judge Julio Mendez&rsquo; 65-page Opinion upholding the authority of the New Jersey Department of Environmental Protection (&ldquo;NJDEP&rdquo;) to construct dunes along the shoreline in Margate City, New Jersey &ndash; &ldquo;absent an appeal.&rdquo;</p>
<p class="MsoNormal">Well, after three years of legal challenges, the fat lady has finally sung and Margate&rsquo;s &nbsp;Commissioners have unanimously thrown in the proverbial beach towel by deciding not to appeal Judge Mendez&rsquo; opinion.&nbsp; The US Army Corps of Engineers has announced its plan to award a contract in July and commence construction in the fall.&nbsp; Once completed, the &ldquo;missing link&rdquo; will complete Absecon Island&rsquo;s 8.1 mile dune project and finally respond to Hurricane Sandy&rsquo;s damage to New Jersey&rsquo;s beachfront.&nbsp;</p>http://www.acoel.org/post/2016/06/23/Doin’-The-Dunes-–-Signing-Off.aspx
admin@acoel.orghttp://www.acoel.org/post/2016/06/23/Doin’-The-Dunes-–-Signing-Off.aspx#commenthttp://www.acoel.org/post.aspx?id=2b60affe-fa2c-4528-a7d5-409b2da7afe0Thu, 23 Jun 2016 16:17:00 -0500Climate ChangeGlobal WarmingNatural DisastersWaterJoseph Mankohttp://www.acoel.org/pingback.axdhttp://www.acoel.org/post.aspx?id=2b60affe-fa2c-4528-a7d5-409b2da7afe00http://www.acoel.org/trackback.axd?id=2b60affe-fa2c-4528-a7d5-409b2da7afe0http://www.acoel.org/post/2016/06/23/Doin’-The-Dunes-–-Signing-Off.aspx#commenthttp://www.acoel.org/syndication.axd?post=2b60affe-fa2c-4528-a7d5-409b2da7afe0Would You Like Some Regulatory Inaction With Your Tea?<p>Wisconsin continues to be the playground of Tea-Party efforts to minimize the power of government, particularly in the environmental arena. On May 10, 2016, the Wisconsin Attorney General opined that the Department of Natural Resources (&ldquo;WDNR&rdquo;) does not have the authority under state law to impose monitoring wells or cumulative impact conditions on high capacity well permits.&nbsp;<a href="http://www.acoel.org/file.axd?file=2016%2f6%2fInsert+A.PDF">Insert A.PDF</a></p>
<p>In 2011, Governor Scott Walker and the Republican legislature passed &ldquo;Act 21,&rdquo; which contains a &ldquo;limited government&rdquo; provision prohibiting agencies from implementing or enforcing &ldquo;any standard, requirement, or threshold&rdquo; in a permit, unless the language &ldquo;is explicitly required or explicitly permitted by statute or by a rule&hellip;&rdquo; &nbsp;Wis. Stat. &sect; 227.10 (2m)&nbsp;<a href="http://www.acoel.org/file.axd?file=2016%2f6%2fInsert+B.PDF">Insert B.PDF</a></p>
<p>The Attorney General&rsquo;s Opinion carefully argues that a contrary state Supreme Court opinion issued shortly after the passage of Act 21 is distinguishable. In <em><a href="http://www.acoel.org/file.axd?file=2016%2f6%2fInsert+C.PDF">Lake Beulah Management District v. State of Wisconsin</a></em>, the Wisconsin Supreme Court found in 2011 that the WDNR had the statutory authority under state law and a general duty to consider the impacts of a high capacity well on the nearby Lake Beulah. The Court also held that the applicable statute constituted a broad legislative grant of the public trust duty to the agency in the context of high capacity well regulation, and upheld the WDNR&rsquo;s permit.</p>
<p>The Attorney General&rsquo;s Opinion asserts that <em>Lake Beulah</em> is &ldquo;no longer controlling.&rdquo; After the oral argument in the case but before the opinion was released, the parties brought Act 21 to the Court&rsquo;s attention.&nbsp; The Court noted in a footnote that Act 21 did not change the underlying environmental statute and stated that none of the parties argued that the new law impacted the WDNR&rsquo;s authority in the <em>Lake Beulah</em> case. The Attorney General has seized on the footnote.</p>
<p>The Attorney General&rsquo;s Opinion relies on the timing of Act 21&rsquo;s passage, the footnote, and a difference of opinion. The Attorney General argues that the state Supreme Court relied on implicit statutory authority to allow the WDNR to condition high capacity well permits, and Act 21 now requires explicit authority.&nbsp; Where the underlying environmental statute allows the agency to place conditions on high capacity wells, including &ldquo;location, depth, pumping capacity, rate of flow, and ultimate use,&rdquo; it does not state that &ldquo;monitoring&rdquo; is an &ldquo;explicitly permitted condition.&rdquo; The Attorney General further notes that the legislature has not delegated its public trust duty to the WDNR. The Opinion has been called &ldquo;a huge step backward for groundwater protection&rdquo; by environmentalists and &ldquo;the demise of implied agency authority&rdquo; by industry.</p>
<p class="MsoNormal">The expanding application of Act 21 provides a developing opportunity to challenge air and water permitting decisions in Wisconsin. Although the Attorney General&rsquo;s Opinion is non-binding, it reflects the administration&rsquo;s push toward limited environmental regulation. It is likely to become increasingly difficult for the agency to resolve complex environmental issues that previously were addressed in negotiated permit decisions, raising the issue of whether it is always in industry&rsquo;s interest for an environmental agency to be prohibited from making technical and nuanced decisions.</p>http://www.acoel.org/post/2016/06/22/Would-You-Like-Some-Regulatory-Inaction-With-Your-Tea.aspx
admin@acoel.orghttp://www.acoel.org/post/2016/06/22/Would-You-Like-Some-Regulatory-Inaction-With-Your-Tea.aspx#commenthttp://www.acoel.org/post.aspx?id=627747cd-4ad2-4285-8b2f-1c8d7df5effaWed, 22 Jun 2016 15:21:00 -0500PermittingStateWaterLinda Benfieldhttp://www.acoel.org/pingback.axdhttp://www.acoel.org/post.aspx?id=627747cd-4ad2-4285-8b2f-1c8d7df5effa1http://www.acoel.org/trackback.axd?id=627747cd-4ad2-4285-8b2f-1c8d7df5effahttp://www.acoel.org/post/2016/06/22/Would-You-Like-Some-Regulatory-Inaction-With-Your-Tea.aspx#commenthttp://www.acoel.org/syndication.axd?post=627747cd-4ad2-4285-8b2f-1c8d7df5effaAccommodate Thy Neighbor<p class="MsoBodyText">During this long and nasty election season, I am relieved that the Texas Supreme Court is embracing a little Tim McGraw (Hold the door, say please, say thank you / Don't steal, don't cheat, and don't lie/ I know you got mountains to climb but always stay humble and kind)(&ldquo;Humble and Kind&rdquo;).&nbsp; Yes, in what the Respondents argued would be a &ldquo;momentous&rdquo; change in Texas groundwater law, the Texas Supreme Court announced in <a href="http://www.acoel.org/file.axd?file=2016%2f6%2fCoyote+Lake+Ranch+v+City+of+Lubbock.pdf"><em>Coyote Lake Ranch, LLC v City of Lubbock</em>, No. 14-0572</a> (Tex. May 27, 2016) that the age-old &ldquo;accommodation doctrine&rdquo; which has served the State so well in resolving disputes between landowners and oil and gas lessees, would apply between a landowner and the owner of the severed interest in the groundwater.&nbsp;</p>
<p class="MsoBodyText">In addition to a great style (rest assured it will be known as the Coyote Ranch holding), the decision should remind you a little of reading Robert Fulghum&rsquo;s <span style="text-decoration: underline;">All I Really Need to Know I Learned in Kindergarten</span>.&nbsp;</p>
<p class="MsoBodyText">For those of you not steeped in Texas oil and gas law, the accommodation doctrine essentially recognizes that, absent a specific agreement to the contrary, an oil and gas lessee has an implied right to use the land as reasonably necessary to produce and remove the minerals but must exercise that right with due regard for the landowner&rsquo;s right.&nbsp; Professor William Huie, Sylvan Lang Professor of Law Emeritus at The University of Texas, called it the &ldquo;not in my living room&rdquo; rule, and explained it in pretty simple terms something like this &ndash; if the oil and gas lessee can cost-effectively drill for and produce oil or gas without putting the wellhead in the landowner&rsquo;s living room, he must not insist that the drilling rig be set up in the parlor.&nbsp; It&rsquo;s not neighborly.&nbsp; And for those not steeped in Texas groundwater law, the &ldquo;rule of capture&rdquo; applies, generally allowing each landowner to pump whatever he or she can without waste, knowing that liability may arise if the pumping physically causes a neighbor&rsquo;s land to subside.&nbsp; That&rsquo;s also not neighborly.</p>
<p class="MsoBodyText">The Coyote Ranch facts are a bit nuanced, but can be summed up as follows.&nbsp; In the midst of the 1950&rsquo;s drought of record in Texas, the City of Lubbock bought the Ranch&rsquo;s groundwater rights.&nbsp; The Ranch reserved groundwater for domestic use, ranching operations, oil and gas production and limited irrigation.&nbsp; The Ranch was limited to one or two wells in each of 16 specific areas for irrigation.&nbsp; During the first 60 years of the agreement, Lubbock installed a total of seven wells on the Ranch.&nbsp; In 2012, Lubbock announced it intended to dramatically ramp up its water production from the Ranch.&nbsp; Over the Ranch&rsquo;s objection, the City mowed through vast swaths of native grass to drill sites etc., and otherwise acted in total disregard of the Ranch&rsquo;s operations and habitat preservation.&nbsp; It wasn&rsquo;t the living room, exactly, but the City plowed across sandy portions of the Ranch contributing to extensive wind erosion.&nbsp; The trial court enjoined the City with an injunction so broad that it operated as a de facto moratorium on any surface activity by the City.</p>
<p class="MsoBodyText">On appeal, the City claimed its deed was broad enough that it could drill whenever and wherever and common law didn&rsquo;t protect the landowners from the City&rsquo;s boorish behavior.&nbsp; The Court of Appeals adopted the City&rsquo;s view of the deed and concluded that the Ranch could not prevail unless the accommodation doctrine applied.&nbsp; Finding no prior authority to support application of the accommodation doctrine to a groundwater dispute, the Court of Appeals reversed the trial court and lifted the injunction.&nbsp;</p>
<p class="MsoBodyText">The Texas Supreme Court granted the Ranch&rsquo;s petition, quickly concluded that the deed provisions did not adequately address the dispute, and marched right into unchartered waters&mdash;whether the accommodation doctrine should apply to a dispute between the holder of a severed groundwater estate and the surface estate owner.&nbsp; The City had to know it was in trouble when the Court characterized its position as follows:</p>
<p class="MsoBodyText" style="margin-left: .5in;">[The City claims it] has an all but absolute right to use the surface heedless of avoidable injury...[and] &nbsp;that it can drill wherever it chooses, even if it could drill in places less damaging to the surface and still access all the water.</p>
<p class="MsoBodyText">That&rsquo;s just NOT neighborly. Thus, to no one&rsquo;s surprise who actually graduated from kindergarten, the Supreme Court concluded that the accommodation doctrine would indeed apply to resolve conflicts between the severed groundwater estate and the surface estate when the conflict was not governed by the express terms of the parties&rsquo; agreement.&nbsp; It&rsquo;s a &ldquo;let&rsquo;s-all-just-try-to-get-along&rdquo; policy that has worked successfully for nearly 50 years in oil and gas disputes, it is well-understood and, as the Supreme Court noted, it is not often disputed.&nbsp; The parties will now return to the trial court to see if they actually learned what they should have in kindergarten.&nbsp; It&rsquo;s amazing that they had to go all the way to the Texas Supreme Court to be reminded how neighbors should act.</p>http://www.acoel.org/post/2016/06/20/Accommodate-Thy-Neighbor.aspx
admin@acoel.orghttp://www.acoel.org/post/2016/06/20/Accommodate-Thy-Neighbor.aspx#commenthttp://www.acoel.org/post.aspx?id=f94b76c6-e37a-478c-b063-800403912423Mon, 20 Jun 2016 10:10:00 -0500WaterMolly Caglehttp://www.acoel.org/pingback.axdhttp://www.acoel.org/post.aspx?id=f94b76c6-e37a-478c-b063-8004039124230http://www.acoel.org/trackback.axd?id=f94b76c6-e37a-478c-b063-800403912423http://www.acoel.org/post/2016/06/20/Accommodate-Thy-Neighbor.aspx#commenthttp://www.acoel.org/syndication.axd?post=f94b76c6-e37a-478c-b063-800403912423Does the Clean Water Act Cover Discharges To Or Through Groundwater? <p>An issue that has recently come to the forefront of Clean Water Act (&ldquo;CWA&rdquo;) jurisprudence in numerous district courts across the country and which is currently before the Ninth Circuit is whether the discharge of pollutants into groundwater which is hydrologically connected to a surface water is regulated under the CWA.&nbsp; The CWA prohibits discharges from point sources to navigable waters, defined as &ldquo;waters of the United States,&rdquo; unless they are in compliance with another provision of the Act, such as the National Pollutant Discharge Elimination System (&ldquo;NPDES&rdquo;) permitting program.&nbsp; Whether discharges to groundwater hydrologically connected to a surface water body fall under this prohibition is a question with far-reaching consequences for facilities as varied as coal ash basins, slurry pits, retention ponds, and hydraulic fracturing wastewater ponds, all of which could theoretically be deemed to be in violation of the CWA under this hydrological-connection theory if they leak into groundwater at all.</p>
<p>As a preliminary matter, there is no question that isolated groundwater itself is not a water of the United States regulated under the CWA.&nbsp; First, multiple courts, including several circuit courts of appeals, have held that groundwater is not &ldquo;waters of the United States.&rdquo;&nbsp; Second, the legislative history surrounding the CWA indicates clearly that Congress considered setting standards for groundwater or explicitly including it in the NPDES permitting program and decided against such an approach.&nbsp; Finally, in the rule, now <a href="http://www.ca6.uscourts.gov/opinions.pdf/15a0246p-06.pdf">stayed</a> by the Sixth Circuit, which EPA and the Army Corps of Engineers promulgated last year defining the term &ldquo;waters of the United States,&rdquo; the agencies explicitly stated that they had &ldquo;never interpreted&rdquo; groundwater &ldquo;to be a &lsquo;water of the United States&rsquo; under the CWA.&rdquo;&nbsp; <a href="https://www.epa.gov/sites/production/files/2015-06/documents/epa-hq-ow-2011-0880-20862.pdf">80 Fed. Reg. 37073</a>.&nbsp;</p>
<p>The hydrological connection issue is not a new one; both the <a href="http://scholar.google.com/scholar_case?case=6019124320717929423&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr">Seventh Circuit</a> in 1994 and the <a href="http://scholar.google.com/scholar_case?case=10752462914372500465&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr">Fifth Circuit</a> in 2001 determined that discharges to groundwater which is hydrologically connected to waters of the United States are not regulated under the CWA or the Oil Pollution Act (&ldquo;OPA&rdquo;) (courts have typically interpreted the term &ldquo;navigable waters&rdquo; to have the same meaning under both acts).&nbsp; In the past few years, however, the frequency of opinions on this topic has increased, and district courts have been very much split on this issue.&nbsp; Some courts and commentators have dubbed this theory of regulation the &ldquo;conduit theory,&rdquo; with the idea being that the groundwater serves as a conduit between the point source and the water of the United States.&nbsp;</p>
<p>Three district courts have recently rejected the conduit theory.&nbsp; In 2014, in <a href="http://scholar.google.com/scholar_case?case=276260991597475656&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr">Cape Fear River Watch, Inc. v. Duke Energy Progress, Inc.</a>, the Eastern District of North Carolina confronted the issue of whether seepage from coal ash basins at one of the defendant&rsquo;s power plants, alleged to contain contaminants and to carry those contaminants through groundwater into a lake, was a discharge prohibited by the CWA.&nbsp; The court emphatically held that &ldquo;Congress did not intend for the CWA to extend federal regulatory authority over groundwater, regardless of whether that groundwater is eventually or somehow &lsquo;hydrologically connected&rsquo; to navigable surface waters.&rdquo;&nbsp; As justifications for its holding, it cited the CWA&rsquo;s dearth of language actually referring to groundwater, its legislative history, and the 2006 Supreme Court case on the meaning of waters of the United States, <a href="http://scholar.google.com/scholar_case?case=6892271506340161224&amp;q=Rapanos+v.+US&amp;hl=en&amp;as_sdt=20006">Rapanos v. United States</a>, in which the plurality opinion and Justice Kennedy&rsquo;s concurrence appeared to reflect a limited construction of the term.&nbsp; The following year, in 2015, the District of Maryland came to a similar conclusion in <a href="http://scholar.google.com/scholar_case?case=16578826789237242419&amp;q=Chevron,+USA,+Inc.+v.+Apex+Oil+Co,+Inc&amp;hl=en&amp;as_sdt=20006">Chevron U.S.A., Inc. v. Apex Oil Co., Inc. </a>&nbsp;The court held that &ldquo;even if it is hydrologically connected to a body of &lsquo;navigable water,&rsquo;&rdquo; groundwater is not regulated under the OPA, also citing the language of the CWA, its legislative history, and Rapanos.&nbsp; Likewise, in 2013, in <a href="http://scholar.google.com/scholar_case?case=921452236154815052&amp;q=Tri-Realty+Co.+v.+Ursinus+College&amp;hl=en&amp;as_sdt=20006">Tri-Realty Co. v. Ursinus College</a>, the Eastern District of Pennsylvania concluded that &ldquo;Congress did not intend either the CWA or the OPA to extend federal regulatory authority over groundwater, regardless of whether that groundwater is eventually or somehow &lsquo;hydrologically connected&rsquo; to navigable surface waters.&rdquo;</p>
<p>Other recent district court opinions, however, have come to the opposite conclusion.&nbsp; In 2014, in <a href="http://scholar.google.com/scholar_case?case=13737152285708117765&amp;q=Hawaii+Wildlife+Fund+v.+County+of+Maui&amp;hl=en&amp;as_sdt=20006">Hawai&rsquo;i Wildlife Fund v. County of Maui</a>, the District of Hawaii confronted the issue of whether the County would need a NPDES permit to discharge waste into underground injection wells when plaintiffs contended that some of the injected wastewater eventually finds its way to the Pacific Ocean.&nbsp; The district court concluded that &ldquo;liability arises even if the groundwater&hellip;is not itself protected by the Clean Water Act, as long as the groundwater is a conduit through which pollutants are reaching navigable-in-fact water.&rdquo;&nbsp; The district court also cited Rapanos in support of its argument.&nbsp; That case is now before the Ninth Circuit on appeal, and the Department of Justice recently filed an amicus brief supporting the argument that there is CWA jurisdiction where pollutants move through groundwater to jurisdictional surface waters if there is a &ldquo;direct hydrological connection&rdquo; between the groundwater and surface waters.&nbsp; Likewise, in 2015, in <a href="http://scholar.google.com/scholar_case?case=6578476341342697937&amp;q=Yadkin+Riverkeeper+v.+Duke+Energy+Carolinas,+LLC&amp;hl=en&amp;as_sdt=20006">Yadkin Riverkeeper v. Duke Energy Carolinas, LLC</a>, the Middle District of North Carolina held that it had jurisdiction over claims where &ldquo;pollutants travel from a point source to navigable waters through hydrologically connected groundwater serving as a conduit between the point source and the navigable waters.&rdquo;&nbsp; That court based its determination in part on the idea that taking an expansive view of the types of discharges which the CWA prohibits is most in line with the statute&rsquo;s purpose.&nbsp; A few weeks later in <a href="http://scholar.google.com/scholar_case?case=10763645294973090637&amp;q=Sierra+Club+v.+Virginia+Electric+and+Power+Co&amp;hl=en&amp;as_sdt=20006">Sierra Club v. Virginia Electric and Power Co.</a>, the Eastern District of Virginia, citing Yadkin Riverkeeper, held that a CWA citizen suit against Dominion Virginia Power using the conduit theory should survive a motion to dismiss.</p>
<p>The line of cases rejecting CWA jurisdiction over discharges to groundwater which is hydrologically connected to surface waters of the United States gets it right.&nbsp; As the legislative history proves, Congress considered regulating discharges to groundwater and rejected such an approach.&nbsp; This decision is reflected in the language of the statute.&nbsp; Moreover, in Rapanos, the Supreme Court restricted the factual scenarios under which a wetland could be considered a water of the United States, thus revealing that a majority of the justices on the Court favored a narrower jurisdictional reach under the CWA.&nbsp; Finally, to accept the &ldquo;conduit theory&rdquo; would be to write the &ldquo;point source&rdquo; requirement out of the statute.&nbsp; As described above, a discharge must come from a point source, which the CWA defines as a &ldquo;discernible, confined and discrete conveyance.&rdquo;&nbsp; Groundwater seepage seems to be about as far from a &ldquo;discernible, confined and discrete&rdquo; source as it gets, resembling nonpoint source pollution like stormwater runoff.</p>http://www.acoel.org/post/2016/06/15/Does-the-Clean-Water-Act-Cover-Discharges-To-Or-Through-Groundwater-.aspx
admin@acoel.orghttp://www.acoel.org/post/2016/06/15/Does-the-Clean-Water-Act-Cover-Discharges-To-Or-Through-Groundwater-.aspx#commenthttp://www.acoel.org/post.aspx?id=25113a95-5c50-4cab-9ad7-43d2e52dc657Wed, 15 Jun 2016 13:04:00 -0500Clean Water ActLitigationWaterDavid Buentehttp://www.acoel.org/pingback.axdhttp://www.acoel.org/post.aspx?id=25113a95-5c50-4cab-9ad7-43d2e52dc6570http://www.acoel.org/trackback.axd?id=25113a95-5c50-4cab-9ad7-43d2e52dc657http://www.acoel.org/post/2016/06/15/Does-the-Clean-Water-Act-Cover-Discharges-To-Or-Through-Groundwater-.aspx#commenthttp://www.acoel.org/syndication.axd?post=25113a95-5c50-4cab-9ad7-43d2e52dc657Treehuggers on Senate Appropriations Committee Approve Conservation Funding <p>Who knew?&nbsp; On May 19 those wild eyed environmentalists on the <a href="http://www.appropriations.senate.gov/imo/media/doc/051916-AG-FY17-FullCommittee-Summary-Web.pdf">Senate Appropriations Committee</a>&nbsp;unanimously (no misprint) passed a FY 2017 agriculture and rural development bill that includes significant funding for conservation work.&nbsp; The <a href="https://www.congress.gov/bill/114th-congress/senate-bill/1800/text">bill</a>&nbsp;now goes to the full Senate for a vote and, if it passes, back to the House for reconciliation.&nbsp;</p>
<p>Of particular interest, the bill breathes new life into the moribund Watershed and Flood Prevention Operations Program.&nbsp; This little known program is supposed to fund land and water conservation efforts at the watershed level, but has long gone unfunded and unloved.&nbsp; The new bill would appropriate $150 million, which would be the first appropriation since 2010.&nbsp; Less than the Administration proposed&mdash;and not nearly adequate, of course&mdash;but nevertheless, new money that could serve important purposes.</p>
<p>Oregon Sen. Jeff Merkley, a member of the Appropriations Committee, sees an opportunity for addressing habitat needs for fish and wildlife, particularly the spotted frog, as well as aiding rural communities.&nbsp; The U. S. Fish and Wildlife Service listed the spotted frog and designated critical habitat in Central Oregon.&nbsp; Indeed, irrigation districts in the area are <a href="http://www.bendbulletin.com/localstate/environment/4345633-151/senate-bill-could-fund-central-oregon-water-projects?referrer=fpblob#">making plans</a>&nbsp;to compete for the funding to help with irrigation equipment upgrades and replacement of open canals with pipes.&nbsp; Such efficiency and conservation efforts reduce pressure on habitat for the spotted frog and other species.</p>
<p>It will be interesting to see if a sister program, the Land and Water Conservation Fund, established by Congress in 1965, can find a receptive ear as well.&nbsp; As described by the <a href="http://www.lwcfcoalition.org/">LWCF Coalition</a>:</p>
<p style="margin-left: .5in; text-indent: 0in;">It was a simple idea: use revenues from the depletion of one natural resource - offshore oil and gas - to support the conservation of another precious resource - our land and water. Every year, $900 million in royalties paid by energy companies drilling for oil and gas on the Outer Continental Shelf (OCS) are put into this fund. The money is intended to create and protect national parks, areas around rivers and lakes, national forests, and national wildlife refuges from development, and to provide matching grants for state and local parks and recreation projects.</p>
<p>Unfortunately, for many years Congress has diverted the funds for other purposes, leaving a multi-billion dollar backlog in maintenance and enhancement projects.&nbsp; There&rsquo;s no direct connection between the LWCF and the Watershed and Flood Prevention Operations Program, and no particular reason why funding of one would lead to funding the other.&nbsp; Still, Sen. Merkley, if you are reading, this one might be added to your to-do list!</p>http://www.acoel.org/post/2016/06/06/Treehuggers-on-Senate-Appropriations-Committee-Approve-Conservation-Funding-.aspx
admin@acoel.orghttp://www.acoel.org/post/2016/06/06/Treehuggers-on-Senate-Appropriations-Committee-Approve-Conservation-Funding-.aspx#commenthttp://www.acoel.org/post.aspx?id=34bf9b68-4a9a-4556-b231-c34ff3385d97Mon, 06 Jun 2016 10:19:00 -0500ConservationResource ManagementWaterRick Glickhttp://www.acoel.org/pingback.axdhttp://www.acoel.org/post.aspx?id=34bf9b68-4a9a-4556-b231-c34ff3385d970http://www.acoel.org/trackback.axd?id=34bf9b68-4a9a-4556-b231-c34ff3385d97http://www.acoel.org/post/2016/06/06/Treehuggers-on-Senate-Appropriations-Committee-Approve-Conservation-Funding-.aspx#commenthttp://www.acoel.org/syndication.axd?post=34bf9b68-4a9a-4556-b231-c34ff3385d97